State of Arkansas v. Brandon Rowe
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SUPREME COURT OF ARKANSAS
No.
STATE OF ARKANSAS,
07-1330
Opinion Delivered
APPELLANT,
VS.
BRANDON ROWE,
APPELLEE,
June 19, 2008
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR2004-790, CR2005-2786,
HON. WILLARD PROCTOR, JR.,
JUDGE,
WRIT OF CERTIORARI GRANTED.
ANNABELLE CLINTON IMBER, Associate Justice
The State of Arkansas appeals, or in the alternative petitions this court for a writ of
certiorari, from the Pulaski County Circuit Court’s order declaring Act 1782 of 2001
unconstitutional. Because we conclude that the circuit court did not have jurisdiction to rule
upon Appellee Brandon Clark Rowe’s motion requesting declaratory relief, we grant the
petition for a writ of certiorari.
In April 2006, Rowe pleaded guilty to several felony charges, including two counts
of manufacturing methamphetamine and two counts of possession of drug paraphernalia with
intent to manufacture methamphetamine. Sentencing was delayed, and on May 24, 2006,
Rowe filed a motion for declaratory judgment asserting that Act 1782 of 2001 was
unconstitutional.
The main thrust of Rowe’s motion was that Act 1782 was an
unconstitutional repeal of the sunset clause of a statutory provision that requires persons
convicted of certain offenses to serve seventy percent (70%) of their sentence prior to being
eligible for parole. See Ark. Code Ann. § 16-93-611 (Repl. 2006).
At the August 24, 2006 sentencing hearing, the circuit court made an oral ruling on
Rowe’s motion stating, “I’m going to declare the 70 % percent provision as applied to be
unconstitutional and that will be reflected in the judgment.” The first judgment and
commitment order was entered September 5, 2006, and an amended judgment and
commitment order was entered September 15, 2006. However, neither judgment contained
a reference to the circuit court’s ruling on Rowe’s motion.
Almost a year later, on July 20, 2007, the circuit court entered a written order granting
Rowe’s motion and declaring Act 1782 of 2001 unconstitutional. In the order, the circuit
court provided a lengthy explanation as to how the act violated Article 5, § 23 of the Arkansas
Constitution. In particular, the act was unconstitutional because the legislature could not
determine the effect of the act from reviewing the text of the act alone. Accordingly, the
court ruled that the seventy percent (70%) rule would not apply to Rowe, and, instead, the
parole statutes would function as though the sunset clause had not been repealed by Act 1782.
Because the parties did not receive notice of the entry of the July 20 order, the parties and the
court agreed to vacate the order, and an identical order was entered on October 1, 2007.
As a threshold issue, we must determine the propriety of this appeal under Rule 3 of
the Arkansas Rules of Appellate Procedure– Criminal. A significant difference exists between
appeals brought by criminal defendants and those brought on behalf of the State. State v.
Fuson, 355 Ark. 652, 144 S.W.3d 250 (2004). The former is a matter of right, whereas the
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latter is neither a matter of right, nor derived from the Constitution, but rather is only granted
pursuant to the confines of Rule 3. Id. Appeals by the State are limited to instances where
the court’s holding would be important to the correct and uniform administration of the
criminal law. Id. We only take state appeals which are narrow in scope and involve the
interpretation of law. Id. Where an appeal does not present an issue of interpretation of the
criminal rules or statutes with widespread ramifications, it does not involve the correct and
uniform administration of the law. Id. State appeals are not allowed merely to demonstrate
the fact that the circuit court erred. Id. Stated another way, this court will only accept
appeals by the State when its holding will establish a precedent that will be important to the
correct and uniform administration of justice. Id. To determine whether this appeal is
proper, we must decide whether the issue subject to appeal is one involving interpretation of
a rule or statute, as opposed to one involving the application of a rule or statute. Id. An
appeal that raises the issue of application, rather than interpretation, of a statutory provision
does not involve the correct and uniform administration of the criminal law. Id.
Even if a direct appeal is not proper under Rule 3, this court has the discretion to treat
an appeal from an order, judgment, or decree which lacks judicial support as if it were
brought up on petition for writ of certiorari. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319
(2001). A writ of certiorari only lies where it is apparent on the face of the record that there
has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate
remedy. Id. These principles apply when a petitioner claims that the lower court did not
have jurisdiction to hear a claim or to issue a particular type of remedy. Id. The court will
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grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of
jurisdiction on the face of the record, or the proceedings are erroneous on the face of the
record. Id. It is not to be used to look beyond the face of the record to ascertain the actual
merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse
a circuit court’s discretionary authority. Id.
Although the State’s brief may have
presented an issue upon which we could hear an appeal under Rule 3, the State’s notice of
appeal was not timely. It appears that by vacating the July 20 order and then reinstating an
identical order on October 1, 2007, the circuit court was attempting extend the time to file
a notice of appeal. Our rules of appellate procedure in criminal cases do not provide for such
an extension.1 Although a criminal defendant may file a petition for belated appeal with this
court, that remedy is not available to the State. See Ark. R. App. P.– Crim. 2(e) (2008).
Accordingly, the time for the State to file a notice of appeal was thirty days after the July 20
order was filed. Thus, the State’s notice of appeal, which was filed October 2, 2007, was
untimely. But, because we agree with the State’s contention that the circuit court did not
have jurisdiction to hear Rowe’s motion, we will treat the State’s appeal as a petition for
certiorari.
The State argues that Rowe’s motion was a posttrial motion pursuant to Arkansas
Rules of Criminal Procedure 33.3, and because the circuit court did not enter a written ruling
We note that under the Arkansas Rules of Appellate Procedure–Civil 4, when a court
fails to give the parties notice of an entry of an order or judgment, a party may move for an
extension of the time to file a notice of appeal, and the circuit court may grant a fourteen day
extension. See Ark. R. App. P.– Civil 4(b)(3) (2008). No similar provision exists in the Arkansas
Rules of Appellate Procedure– Criminal. Furthermore, as stated infra, we have declined to apply
Arkansas Rule of Civil Procedure 60(a) to criminal proceedings.
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within thirty (30) days of the entry of the judgment, the motion was deemed denied. We do
not agree with the State’s argument. While Rowe made the motion after he pled guilty, the
motion was made before sentencing, and it did not challenge either Rowe’s conviction or
sentence. Instead, Rowe’s motion addressed the collateral issue of his parole eligibility once
he was sentenced. The motion was not posttrial in nature, and because the circuit court did
not enter a written ruling prior to the judgment and commitment order being filed, the
motion did not survive following the entry of judgment.2 See Admin. Order No. 2.
However, even if Rowe’s motion had been a posttrial motion, the motion would have
been deemed denied under Rule 33.3 because the circuit court did not enter a written order
on the motion within thirty (30) days of the entry of the judgment. Ark. R. Crim. P. 33.3(c)
(2008). Accordingly, the circuit court would have lost jurisdiction to rule on the motion on
the thirtieth day after the judgment was filed.
Rowe’s motion also did not survive the entry of the judgment and commitment order
by way of any other means. We have applied the theory behind Arkansas Rule of Civil
Procedure Rule 60(b) to criminal cases because Rule 60(b) embodies the common law rule
of nunc pro tunc orders, which is applicable in both civil and criminal cases. See McCuen v.
State, 338 Ark. 631, 999 S.W.2d 682 (1999) (interpreting former version of the rule).
Pursuant to Rule 60(b) a circuit court can enter an order nunc pro tunc at any time to correct
Rowe argues that the written transcript of the August 24, 2006 sentencing hearing
should be sufficient to serve as a written order. That argument, however, is meritless because it is
in direct contravention with Administrative Order Number 2, which dictates that a ruling is not
final until a written order is filed with the clerk of the court. See Admin. Order No. 2(b)(2). See
also, Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).
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clerical errors in a judgment or order. Ark. R. Civ. P. 60(b) (2008). A circuit court’s power
to correct mistakes or errors is to make “the record speak the truth, but not to make it speak
what it did not speak but ought to have spoken.” Lord v. Mazzanti, 339 Ark. 25, 29, 2
S.W.3d 76, 79 (1999).
In the instant case, the circuit court’s oral ruling on August 24, 2006, indicated that
the ruling would be incorporated into the judgment. However, the ruling as to Act 1782 was
not included in either the original or amended judgment and commitment order. The
written order, filed July 20, 2007, did far more than reiterate the circuit court’s oral ruling that
the act was unconstitutional. Instead, the written order provided a lengthy explanation as to
why Act 1782 was unconstitutional and stated that Rowe’s parole eligibility would not be
affected by the seventy percent (70%) rule. In sum, the circuit court’s order was an attempt
to have the record reflect what should have happened and not what happened but was not
recorded.
Additionally, while Arkansas Rule of Civil Procedure 60(a) allows for a circuit
court to modify or vacate a judgment, order, or decree, within ninety days of its having been
filed with the clerk, we have emphatically stated that Rule 60(a) does not apply to criminal
proceedings. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). Nor have we allowed for
the application of Arkansas Rule of Civil Procedure 60(c), which allows a court to set aside
a judgment more than ninety (90) days after the entry of judgment. See McCarty v. State, 364
Ark. 517, 221 S.W.3d 332 (2006); Ibsen v. Plegge, supra.
Even so, the circuit court still would not have had the authority to rule upon Rowe’s
motion under the provisions of Rule 60. Rowe’s motion does not meet any of the
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requirements listed in Rule 60(c), and the circuit court did not rule on Rowe’s motion within
ninety (90) days of the judgment being entered.
For the above stated reasons, we conclude that the circuit court lost jurisdiction to rule
on Rowe’s motion when the judgment and commitment order was entered.
Writ granted.
HANNAH AND DANIELSON, JJ., dissent.
HANNAH, C.J., dissenting. While I agree with the majority’s conclusion that the State
failed to timely file its appeal and the conclusion that Rowe’s motion was not a posttrial
motion pursuant to Arkansas Rule of Criminal Procedure 33.3, I disagree with the majority’s
conclusion that the circuit court did not have the authority to rule upon Rowe’s motion
pursuant to Arkansas Rule of Civil Procedure 60(b). Accordingly, I dissent, and I would deny
the State’s petition for writ of certiorari.
A circuit court may enter an order nunc pro tunc at any time to make the record
“speak the truth and to correct a clerical mistake but not to modify a judicial act.” McCuen v.
State, 338 Ark. 631, 634, 999 S.W.2d 682, 683 (1999) (emphasis added). At the August 24,
2006 hearing, the circuit court made the following rulings:
I’m going to sentence you to ten years in the Arkansas Department of
Correction, give you credit for 30 days on this. I’m going to declare the 70
percent provision as applied to be unconstitutional and that will be reflected in
the judgment and it will be concurrent on all counts and all cases.
And then on the other case, actually, it will be the same thing, ten years—let
me make this clear because the record has to be clear. On count one—20052876, ten years on count one. I’m finding the provisions to be
unconstitutional. Counts two and three, $2500 fine and that’s concurrent with
Case No. 2005-4460. Counts four and five will merge.
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Then finally in the last case, which is 2004-790, count one again, ten years.
I’m going to declare the 70 per cent rule unconstitutional and inapplicable.
While the circuit court indicated from the bench that the rulings regarding Act 1782
would be included in the judgment, the rulings were not incorporated into either the original
or amended judgment and commitment order. Thereafter, the circuit court, in its written
order filed July 20, 2007, concluded that Act 1782 was unconstitutional. In no way did the
circuit court modify a judicial act. Rather, it reiterated its August 24, 2006 ruling that Act
1782 was unconstitutional.
The majority states that the circuit court’s order was an attempt to have the record
reflect what should have happened and not what happened but was not recorded because the
written order “provided a lengthy explanation as to why Act 1782 was unconstitutional and
stated that Rowe’s parole eligibility would not be affected by the seventy percent (70%) rule.”
I do not agree. The bottom line is that at the August 24, 2006 hearing and in the July 20,
2007 order, the circuit court found Act 1782 unconstitutional and explained that the 70%
provision would not be applied to Rowe’s sentence. The fact that a circuit court’s written
order will often explain with specificity its oral ruling from the bench should not be viewed
as an attempt by the circuit court to have the record reflect what should have happened and
not what happened but was not recorded. Because I believe the circuit court had the
authority to enter the order pursuant to Rule 60(b), I would deny the State’s petition for writ
of certiorari.
As a final note, I wish to mention that the State argued that Rowe did not have
standing to challenge the parole-eligibility statute because, at the time he filed his motion for
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declaratory judgment, he had not been sentenced. This court will grant a writ of certiorari
when the circuit court lacked jurisdiction to enter an order. However, this court does not treat
standing as a jurisdictional issue. See, e.g., State v. Houpt, 302 Ark. 188, 788 S.W.2d 239
(1990). Therefore, a challenge to a party’s standing should be raised in an appeal, not in a
petition for writ of certiorari. The remedy of an appeal was available to the State in this case;
however, the State waived its right to appeal when it failed to timely file its notice of appeal.
A petition for writ of certiorari cannot be used as a substitute for an appeal.
DANIELSON, J., joins.
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